stitution of the United Kingdom of Great Britain and Ireland, whereon may depend in any degree the allegiance of any person to the Crown of the United Kingdom (1), or the sovereignty or dominion of the Crown over any part of British India (m).

(3) The Governor-General in Council has not power, without the previous approval of the Secretary of State in Council, to make any law empowering any court, other than a high court within the meaning of this Digest (n), to sentence to the punishment of death any of His Majesty's natural-born subjects born in Europe, or the children of such subjects, or abolishing any high court within the meaning of this Digest (0).

(4) Any law made in accordance with this section controls and supersedes any other law or regulation repugnant thereto which may have been previously made by any authority in India (p).

(5) A law made in accordance with this section for His Majesty's Indian Marine Service does not apply to any offence unless the vessel to which the offender belongs is at the time of the commission of the offence within the limits of Indian waters, that is to say, the high seas between the Cape of Good Hope on the West and the Straits of Magellan on the East (q), and any territorial waters between those limits.

(6) The punishments imposed by any such law as last aforesaid for offences must be similar in character to, and not in excess of, the punishments which may at the time of making the law be imposed for similar offences under the Acts relating to His Majesty's Navy, except that in the case of persons other than Europeans or Americans imprisonment for any term not exceeding fourteen years or transportation for life or any less term may be substituted for penal servitude. (a) The legislative powers of the Governor-General in Council are derived from a series of enactments.

Under s. 73 of the Government of India Act, 1833 (3 & 4 Will. IV, c. 85), it is lawful for the said Governor-General in Council from time to time to make articles of war for the government of the native

officers and soldiers in the military service of the Company, and for the administration of justice by courts-martial to be holden on such officers and soldiers, and such articles of war from time to time to repeal or vary and amend; and such articles of war shall be made and taken notice of in the same manner as all other the laws and regulations to be made by the said Governor-General in Council under this Act, and shall prevail and be in force, and shall be of exclusive authority over all the native officers and soldiers in the said military service, to whatever presidency such officers and soldiers may belong, or wheresoever they may be serving: Provided nevertheless, that until such articles of war shall be made by the said Governor-General in Council, any articles of war for or relating to the government of the Company's native forces, which at the time of this Act coming into operation shall be in force and use in any part or parts of the said territories, shall remain in force.'

By s. 22 of the Indian Councils Act, 1861 (24 & 25 Vict. c. 67), the Governor-General in Council was empowered at meetings for the purpose of making laws and regulations as aforesaid, and subject to the provisions therein contained, to make laws and regulations for repealing, amending, or altering any laws or regulations whatever now in force or hereafter to be in force in the Indian territories now under the dominion of Her Majesty, and to make laws and regulations for all persons, whether British or native, foreigners or others, and for all courts of justice whatever, and for all places and things whatever within the said territories, and for all servants of the Government of India within the dominions of princes and States in alliance with Her Majesty; and the laws and regulations so to be made by the GovernorGeneral in Council shall control and supersede all laws and regulations in anywise repugnant thereto which shall have been made prior thereto by the governors of the presidencies of Fort Saint George and Bombay respectively in Council, or the Governor or Lieutenant-Governor in Council of any presidency or other territory for which a council may be appointed, with power to make laws and regulations, under and by virtue of this Act: Provided always, that the said Governor-General in Council shall not have the power of making any laws or regulations which shall repeal or in any way affect any of the provisions of this Act: 'Or any of the provisions of the Government of India Act, 1833, and of the Government of India Act, 1853, and of the Government of India Act, 1854, which after the passing of this Act shall remain in force:

'Or any provisions of the Government of India Act, 1858, or of the Government of India Act, 1859:

'Or of any Act enabling the Secretary of State in Council to raise money in the United Kingdom for the Government of India :

'Or of the Acts for punishing mutiny and desertion in Her Majesty's Army or in Her Majesty's Indian forces respectively; but subject to the provision contained in the Government of India Act, 1833, s. 73, respecting the Indian articles of war:

'Or any provisions of any Act passed in this present session of Parliament, or hereafter to be passed, or anywise affecting Her Majesty's Indian territories, or the inhabitants thereof:

'Or which may affect the authority of Parliament, or the constitution and rights of the East India Company, or any part of the unwritten laws or constitution of the United Kingdom of Great Britain and Ireland, whereon may depend in any degree the allegiance of any person to the Crown of the United Kingdom, or the sovereignty or dominion of the Crown over any part of the said territories.'

By s. 1 of the Government of India Act, 1865 (28 & 29 Vict. c. 15), the Governor-General of India was empowered, at meetings for the purpose of making laws and regulations, to make laws and regulations for all British subjects of Her Majesty within the dominions of princes and States in India in alliance with Her Majesty, whether in the service of the Government of India or otherwise.

By s. 1 of the Indian Councils Act, 1869 (32 & 33 Vict. c. 98), the Governor-General of India in Council was empowered, at meetings for the purpose of making laws and regulations, to make laws and regulations for all persons being native Indian subjects of Her Majesty without and beyond as well as within the Indian territories under the dominions of Her Majesty. And under s. 3 of the same Act a law or regulation so made is not to be invalid by reason only of its repealing or affecting ss. 81, 82, 83, 84, 85, or 86 of the Government of India Act, 1833.

The Indian Marine Service Act, 1884 (47 & 48 Vict. c. 38), gives power to make laws for the Indian Marine Service.

Section 45 of the Government of India Act, 1833 (3 & 4 Will. IV, c. 85), enacts that all laws and regulations made under that Act, so long as they remain unrepealed, shall be of the same force and effect within and throughout the Indian territories as any Act of Parliament would or ought to be within the same territories, and shall be taken notice of by all courts of justice whatsoever within the same territories in the same manner as any public Act of Parliament would or ought to be taken notice of, and it shall not be necessary to register or publish in any court of justice any laws or regulations made by the said GovernorGeneral in Council. This enactment has not been repealed, but the first part of it applies in terms only to laws made under the powers given by the Act of 1833, and is not reproduced in the Act of 1861, or expressly made applicable to laws made under the powers given by that Act. Its repetition or application was probably considered unnecessary in 1861. The exemption from the obligation to register, which is in general terms, was enacted with reference to the questions which had arisen as to the necessity for registering enactments made under various statutory powers conferred before 1833. (See above, p. 59.)

The powers of legislation reproduced in this Digest are not exhaustive. Under various Acts of Parliament the Indian Legislature, like other

British legislatures with limited powers, has power to make laws on particular subjects with more extensive operation than laws made under its ordinary powers. See e. g. the Extradition Act, 1870 (33 & 34 Vict. c. 52, s. 18), the Slave Trade Act, 1876 (39 & 40 Vict. c. 46, s. 2), the Fugitive Offenders Act, 1881 (44 & 45 Vict. c. 69, s. 32), the Colonial Courts of Admiralty Act, 1890 (53 & 54 Vict. c. 27), the Colonial Probates Act, 1892 (55 & 56 Vict. c. 6, s. 1), and the Merchant Shipping Act, 1894 (57 & 58 Vict. c. 60, ss. 264, 368, 735, 736).

The leading case on the general powers of the Indian Legislature is The Queen v. Burah (1878), L. R. 3 App. Cas. 889. The Indian Legislature had passed an Act (XXII of 1869) purporting:-First, to remove the Garo Hills from the jurisdiction of the ordinary civil and criminal courts, and from the law applicable to those courts, and, secondly, to vest the administration of civil and criminal justice in those territories in officers appointed by the Lieutenant-Governor of Bengal. The Act was to come into operation on a date to be fixed by the lieutenant-governor. By the ninth section the lieutenant-governor was empowered, by notification in the Calcutta Gazette, to extend all or any of the provisions of the Act to certain neighbouring mountainous districts. The validity of the Act, and particularly of the ninth section, was questioned, but was maintained by the Judicial Committee of the Privy Council, who held (1) that the Act was not inconsistent with the Indian High Courts Act, 1861 (24 & 25 Vict. c. 104), or with the Charter of the Calcutta High Court; (2) that it was in its general scope within the legislative powers of the Governor-General in Council; (3) that the ninth section was conditional legislation and not a delegation of legislative power, and (4) that where plenary powers of legislation exist as to particular subjects, whether in an imperial or in a provincial legislature, they may be well exercised, either absolutely or conditionally; in the latter case leaving to some external authority the time and manner of carrying its legislation into effect, and the area over which it is to extend..

Lord Selborne, in delivering the judgement of the Judicial Committee, expressed himself as follows:

'The Indian Legislature has powers expressly limited by the Act of the Imperial Parliament which created it, and it can, of course, do nothing beyond the limits which circumscribe these powers. But, when acting within these limits, it is not in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have, plenary powers of legislation, as large, and of the same nature, as those of Parliament itself. The established courts of justice, when a question arises whether the prescribed limits have been exceeded, must of necessity determine that question; and the only way in which they can properly do so is by looking to the terms of the instrument, by which affirmatively the legislative powers were created, and by which negatively they are restricted. If what has been done is legislation within the general scope of the affirmative words which give the power, and if it violates no express condition or restriction by which

that power is limited (in which category would of course be included any Act of the Imperial Parliament at variance with it), it is not for any court of justice to inquire further, or to enlarge constructively those conditions and restrictions.'

The same principles have been since laid down with respect to colonial legislatures in the case of Powell v. Apollo Candle Company (1885), 10 App. Cas. 282. See also Harris v. Davies (1885), 10 App. Cas. 279, and Musgrove v. Chun Teeong Toy, [1891] L. R. A. C. 274 (the Chinese immigration case).

In Sprigg v. Siggan, [1897] A. C. 238, it was held on appeal from the Cape that a power for the governor to add to the existing laws already proclaimed and in force in Pondoland such laws as he should from time to time by proclamation declare to be in force in those territories, did not authorize the issue of a proclamation for the arrest and imprisonment of a particular chief.

(b) The expression used in the Indian Councils Act, 1861, is the Indian territories now under the dominion of Her Majesty.' But s. 3 of the Indian Councils Act, 1892 (55 & 56 Vict. c. 14), explains that this is to be read as if the words or hereafter' were inserted after 'now.' Consequently it is represented by British India, which means the territories for the time being constituting British India (see s. 124 and the notes thereon).

(c) The Act of 1861 gave power to make laws for all servants of the Government of India within the dominions of princes and States in alliance with Her Majesty.' The Act of 1865 gave power to make laws for all British subjects of Her Majesty within the dominions of princes or States in India in alliance with Her Majesty, whether in the service of the Government of India or not.' Consequently it may be argued that the power to make laws for servants of the Government of India, as distinguished from British subjects generally, extends beyond the Native States of India. But, having regard to the sense in which the phrase 'princes and States in alliance with Her Majesty' is commonly used in Acts relating to India, it seems safer to adopt the narrower construction and to treat the expressions in the Act of 1861 and in the Act of 1865 as synonymous'.

6

The expression Government of India' is defined by the Indian General Clauses Act (X of 1897), in terms which would exclude the local Governments. But this definition does not apply to the construction of an English Act of Parliament, and the expression 'servants of the Government of India' in the Act of 1861 would doubtless be held to include all servants. of the Crown employed by or under the Government of India, whether directly employed by the Government of India in its narrower sense, or by or under a local Government, and

1 On general principles, there would seem to be no objection to legislation conferring jurisdiction in respect of an offence committed by a servant of the Crown in any foreign country, where the offence consists of a breach of his duty to the Crown.